PRELIMINARY INSTRUCTIONSRevised June 20191

Introductory Note to the Judge

The following is a guide for preliminary instructions in a criminal case.They are designed to provide a framework for a trial judge to selectappropriate charges. The decision as to when to use particular instructionsis left to the sound discretion of the trial judge. Some of these instructionscould be used during the trial as well as, or instead of, in the preliminaryinstructions. The responsibility of implementing the applicable law fallssquarely on the trial judge. Thus, the instructions that follow are, in effect,“model,” or “sample,” charges.

The Criminal Procedure Law requires that “[t]he court must deliverpreliminary instructions to the jury” [CPL 260.30], but provides little guidanceon the requirements of preliminary instructions. It specifies:

“After the jury has been sworn and before the people'sopening address, the court must instruct the jury generallyconcerning its basic functions, duties and conduct.” CPL270.40

The statute thereafter mandates only that certain admonitions be given thejury:

“Such instructions must include, among other matters,admonitions that the jurors may not converse amongthemselves or with anyone else upon any subject connectedwith the trial; that they may not read or listen to any accountsor discussions of the case reported by newspapers or othernews media; that they may not visit or view the premises orplace where the offense or offenses charged were allegedlycommitted or any other premises or place involved in the case; that prior to discharge, they may not request, accept, agree toaccept, or discuss with any person receiving or accepting, anypayment or benefit in consideration for supplying anyinformation concerning the trial; and that they must promptlyreport to the court any incident within their knowledge involvingan attempt by any person improperly to influence any memberof the jury.” CPL 270.40.

The Court of Appeals has added some guidance on the purpose andcontent of preliminary instructions. Thus, in People v. Newman, 46 N.Y.2d

i

126, 128-130 (1978), the Court explained:

“It is well and good for Trial Judges to give jurors the benefit ofan introductory and explanatory address to help dissipatesome of the mystery that may lurk in laypersons who are aboutto undertake the responsibilities of playing a significant anddeterminative, albeit transient, role in the adjudicative process.It is also more than helpful, and in some cases essential, thatjurors be familiarized with pertinent rules and procedurespeculiar to the law and the courts and perhaps the particularmatter at hand. Every Judge who has had to preside over ajury trial and every lawyer who has ever prepared or tried sucha case appreciates the advantages of such indoctrination ineasing the transition jurors must make as they move from theirusual occupational environments into the world of law.”

The American Bar Association Principles for Juries & Jury Trials hasechoed Newman:

“The court should give preliminary instructions directlyfollowing empanelment of the jury that explain the jury’s role,the trial procedures including note-taking and questioning byjurors, the nature of evidence and its evaluation, the issues tobe addressed, and the basic relevant legal principles, includingthe elements of the charges and claims and definitions ofunfamiliar legal terms.” Principle 6 -C-1.

Thus, preliminary instructions should cover the statutory requirements,set forth the basic and important legal principles that a jury needs to know,attempt to explain to jurors things they will see and hear during a trial thatmight otherwise puzzle them, and try to assure jurors that rulings onobjections and the rules that govern a trial are designed solely to assure thatthe trial will be orderly and fair, and not to hide relevant information.

ii

TABLE OF CONTENTS

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3[Multiple Defendants]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4Explanation of the "Record". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5Openings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6Presentation of Evidence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7Exhibits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Refreshing a Witness's Recollection . . . . . . . . . . . . . . . . . . . 11Pre-trial Preparation and Exclusion of Witnesses . . . . . . . . . 12

Defendant's Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13Presumption of Innocence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13Defendant Who Does Not Testify . . . . . . . . . . . . . . . . . . . . . . . . . . 13Burden of Proof . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14Reasonable Doubt. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15Examination of witnesses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17Juror Questions (select applicable alternative) . . . . . . . . . . . . . . . . 18

Not Permitted. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18Permitted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Juror Note-taking Permitted. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20Credibility of Witness. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Test of Credibility. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22Court Rulings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23Permissible Testimony . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Statement not admitted for its truth . . . . . . . . . . . . . . . . . . . . 25Prior Statement of a Witness. . . . . . . . . . . . . . . . . . . . . . . . . 26Photographs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Lawyers’ Questions, Objections, . . . . . . . . . . . . . . . . . . . . . . . . . . . 30Summations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32Charge & Deliberation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Fairness Admonition (Added June 2019). . . . . . . . . . . . . . . . . . 33Foreperson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34Summary of Trial Stages. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35Juror Problem, Trial Delay. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36Juror Attendance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37Alternate Jurors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38Required Jury Admonitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

Introduction

Members of the jury, we are about to proceed with the trial of the

case of People v.___________________.

At the outset, I am going to explain the various stages of a trial

and what you may expect to see and hear during the trial so that you

may better understand what is taking place. I will also remind you of

some basic principles of law which apply to this and all criminal trials.

At the conclusion of the case, I will again remind of those

principles. I will define the crime(s) charged, explain the law that

applies to [that/those] charged crime(s), and list for you the elements

that the People must prove beyond a reasonable doubt.

Remember, during jury selection, I explained that “elements of a

charged crime” is a term that refers to the various parts of our law's

written definition of the crime, in addition to the identification of a person

as the one who committed that crime.

2

[Add if applicable:

Multiple Defendants2

There are (specify the number) defendants before you and we

are thus conducting (specify the number) trials in one.

It is your obligation to evaluate the evidence as it applies, or fails

to apply, to each defendant separately.

Each instruction on the law must be considered by you as

referring to each defendant separately.

You must return a separate verdict for each defendant. And

those verdicts may be, but need not be, the same.

It is your sworn duty to give separate consideration to the case

of each individual defendant.]

3

Explanation of the "Record"

As you can see, a court reporter is taking down everything that

is being said. What he/she takes down is called the "record" of the trial.

Sometimes you will see a witness use his/her hands to illustrate

something. For example, a witness may say that an object was “this

long,” using his hands to demonstrate. Normally, you will then hear the

lawyer or the court say something like: “Let the record reflect that the

witness is indicating about one foot.”

We do that because sometimes it becomes necessary to have

the court reporter read back what a witness says and what the witness

was indicating. If someone does not state orally for the record what a

witness is indicating with his or her hands, when that portion of the

record is read back, we will not know what the witness was indicating.

You, of course, will be able to see what the witness is indicating,

and make your own judgment.

4

Openings

The trial formally begins with what the law calls an opening

statement by the prosecutor.

The law requires the prosecutor to make an opening statement.3

The law, however, does not require the defendant to make an

opening statement.4 If the defendant does not make an opening

statement, that is not a factor from which you may draw any inference

unfavorable to him/her.

Remember, what the lawyers say in an opening statement or at

any time thereafter is not evidence.5 The lawyers are not witnesses.

What I say is not evidence. I am not a witness. In other words, you

must decide the case on the evidence and what the lawyers say at any

time is not evidence.

5

Presentation of Evidence

After completion of the opening statement(s), the prosecutor will

proceed with the presentation of evidence.6

I remind you that the indictment is not evidence; it is simply a

document that contains an accusation.7 The defendant has pled not

guilty to (that/ those) accusation(s), and the trial is for you to hear the

evidence and decide whether the defendant is guilty or not guilty.

I remind you also that evidence is the testimony of witnesses, the

stipulations, if any, agreed to by the parties, and documents or other

physical objects received in evidence.

1. Testimony is of course the most common form of evidence

and comes from the questioning of the witnesses by the lawyers, and

perhaps by the court, [but not by the jury].

A question by itself is not evidence. It is the question with

the answer that is the evidence. For example, sometimes a

question will assume something to be true. You are not,

however, to conclude that an assumption in a question is true

unless the answer, in your judgment, confirms that it is true. So,

you must consider the question with the witness's answer, and

decide whether you find the answer believable and accurate--

because, again, it is the question with the answer that is the

evidence.

2. Next, evidence may come in the form of a stipulation. A

stipulation is information which both parties agree to present to the jury,

as evidence, without calling a witness to testify to the information.

6

3. Lastly, evidence may come in the form of physical

objects, such as: documents, photographs, clothing, or charts.

7

Exhibits

When a lawyer is questioning a witness and in a question refers

to a physical object for the first time, the object is normally marked with

a number or letter of the alphabet so we can more easily identify the

object and refer to it. That procedure is very helpful in keeping track of

physical objects.

It is the responsibility of the Court Reporter to physically write an

exhibit number or letter on the object, or on a label that is then attached

to the object. Sometimes, depending on the type of physical object, it

may be too difficult or inconvenient to mark the object and the object is

deemed marked rather than actually marked. It is the responsibility of

the court personnel to keep an accurate listing of the exhibits.

Normally, when the object is first referred to, a lawyer will ask the

court to have the object "marked for identification."

If the People make the request and the court grants the request,

the object is deemed or marked with a number.

If the defendant makes the request and the court grants the

request, the object is deemed or marked with a letter of the alphabet.

That just helps us to remember who introduced the exhibit.

8

[Sometimes, to save time during the trial, I have certain physical

objects deemed or marked for identification before the trial begins and

you will then hear the lawyer refer to the object only by its number or

letter.]

An item deemed or marked for identification is not evidence and

is therefore not available for your inspection and consideration.

Sometimes a lawyer will ask the court to receive the object in

evidence. When a lawyer does that, the other lawyer is at that moment

permitted to ask the witness questions designed to determine whether

the object can, under our law, be admitted in evidence. If I grant the

request to admit the object in evidence, then the object becomes

evidence, and is available for your inspection and consideration.8

If at the time a physical object is received in evidence, it is too

small for all the jurors to see (like a small photograph), at a convenient

moment, I will have the court officers show the object to you.

Further, if during your deliberations you wish to see an object

received in evidence, you may do so by simply asking me to see the

object.

9

Refreshing a Witness's Recollection

An example of a document that may be marked for identification

but not received in evidence is as follows:

Sometimes a witness will be asked a question and then answer

that he or she can not remember what is being asked for, but that he or

she may be able to refresh his or her recollection or memory if given an

opportunity to examine something, usually a document. The witness

may then be given the document and permitted to read it silently to

himself or herself. If that document refreshes the witness's recollection

or memory, the witness will then answer the question, and the question

with that answer is evidence.9

The document used to refresh the witness's recollection may or

may not be marked for identification but in most instances that

document will not be received in evidence and thus that document is

not available for your inspection and consideration. But the question

with the answer that the witness gave will be in evidence for your

consideration.

10

Pre-trial Preparation and Exclusion of Witnesses

It is common and permissible for a lawyer [or an investigator for

a lawyer] to speak to a witness about his or her testimony before calling

him or her to the stand. 10

Also, a witness may review documents and other material

pertaining to the case before he or she testifies at the trial.11

Generally, a witness scheduled to testify at trial may not be

present in the courtroom during the testimony of other witnesses.12

11

Defendant's Case

After the People have completed the presentation of their

evidence, (each/the) defendant may, but is not required to, present

evidence.13

Presumption of Innocence

I remind you that, throughout these proceedings, the defendant

is presumed to be innocent.14 As a result, you must find the defendant

not guilty, unless, on the evidence presented at this trial, you conclude

that the People have proven the defendant guilty beyond a reasonable

doubt.15

[Defendant Who Does Not Testify

(Add only if the defendant requests it.)

That a defendant does not testify as a witness is not a factor from

which any inference unfavorable to the defendant may be drawn.]16

12

Burden of Proof

The defendant is not required to prove that he/she is not guilty.17 In fact, the defendant is not required to prove or disprove anything.18 To the contrary, the People have the burden of proving the defendant

guilty beyond a reasonable doubt.19 That means, before you can find

the defendant guilty of a crime, the People must prove beyond a

reasonable doubt every element of the crime including that the

defendant is the person who committed that crime.20 The burden of

proof never shifts from the People to the defendant.21 If the People fail

to satisfy their burden of proof, you must find the defendant not guilty.22

If the People satisfy their burden of proof, you must find the defendant

guilty.

13

Reasonable Doubt

What does our law mean when it requires proof of guilt "beyond

a reasonable doubt"?23

The law uses the term, "proof beyond a reasonable doubt," to tell

you how convincing the evidence of guilt must be to permit a verdict of

guilty.24 The law recognizes that, in dealing with human affairs, there

are very few things in this world that we know with absolute certainty.

Therefore, the law does not require the People to prove a defendant

guilty beyond all possible doubt.25 On the other hand, it is not sufficient

to prove that the defendant is probably guilty.26 In a criminal case, the

proof of guilt must be stronger than that.27 It must be beyond a

reasonable doubt.28

A reasonable doubt is an honest doubt of the defendant's guilt for

which a reason exists based upon the nature and quality of the

evidence.29 It is an actual doubt, not an imaginary doubt.30 It is a doubt

that a reasonable person, acting in a matter of this importance, would

be likely to entertain because of the evidence that was presented or

because of the lack of convincing evidence.31

Proof of guilt beyond a reasonable doubt is proof that leaves you

so firmly convinced 32 of the defendant's guilt that you have no

reasonable doubt of the existence of any element of the crime or of the

defendant's identity as the person who committed the crime.33

14

In determining whether or not the People have proven the

defendant's guilt beyond a reasonable doubt, you should be guided

solely by a full and fair evaluation of the evidence. After carefully

evaluating the evidence, each of you must decide whether or not that

evidence convinces you beyond a reasonable doubt of the defendant's

guilt.

Whatever your verdict may be, it must not rest upon baseless

speculations.34 Nor may it be influenced in any way by bias, prejudice,

sympathy, or by a desire to bring an end to your deliberations or to

avoid an unpleasant duty.35

If you are not convinced beyond a reasonable doubt that the

defendant is guilty of a charged crime, you must find the defendant not

guilty of that crime. If you are convinced beyond a reasonable doubt

that the defendant is guilty of a charged crime, you must find the

defendant guilty of that crime.36

15

Examination of witnesses

Now, each witness, by whomever called, is first examined, that

is, asked questions, by the lawyer who calls the witness to testify. That

is called direct examination.

When the direct examination is completed, the other lawyer is

permitted to ask questions of the witness. That is called cross

examination.

You may then have re-direct examination and re-cross

examination, but under our law, the scope of such additional

examinations is limited on the theory that the lawyers had sufficient

opportunity on their original direct or cross to ask whatever they

wanted.37

16

Juror Questions (select applicable alternative)

Not Permitted

The lawyers are responsible for questioning the witnesses. The

Court may at times ask a witness a question. Jurors may not ask

questions of a witness.

Permitted 38

The lawyers are responsible for questioning the witnesses. The

Court may at times ask a witness a question.

Jurors, as we have discussed, are responsible for listening

carefully to all the testimony and other evidence and rendering a fair

verdict based on the evidence presented to them. Thus, jurors do not

regularly question witnesses. In a rare instance, a juror may, however,

wish to ask a question which will clarify in the juror’s mind something

the witness testified to. A clarifying question by a juror is permitted

pursuant to the following rules.

First, because you will often find that a question which you would

like to ask is eventually asked by a lawyer, please do not write a

question down while the lawyers are questioning the witness. When

the lawyers are finished questioning a witness and before the witness

is excused, I will supply you with paper to write, if you wish, a question

for the witness. Please, do not write your name on the paper, and do

not feel compelled to write a question, and do not at any time discuss

with a fellow juror or anyone else whether to ask a question.

17

Second, if you do write a question, the question should be

designed to obtain relevant information, usually of a clarifying nature.

Your questions should not, directly or indirectly, express your opinion

of the witness or the case, or seek to argue with the witness. Nor are

you to assume the role of investigator or advocate. You are the

impartial finders of fact and your questions therefore should be neutral

in tone and substance and limited to clarifying something which a

witness has testified to. Again, please do not feel compelled to write

a question. A question from a juror should be the exception, not the

rule.

Third, your question will be subject to the same rules of evidence

that a question of a lawyer is subject to. I will thus review your written

question with the lawyers and decide whether or not to authorize the

question as written or in substance in a legally permissible form. I will

ask the witness any authorized question.

If your question is not asked, or is asked in a different form,

please do not be offended, do not speculate as to why the question was

not asked, or as to what the answer would have been, and do not take

any unfavorable inference against the People or a/the defendant. After

the witness has answered your question, the lawyers will be permitted

to ask any relevant follow-up questions.

18

Juror Note-taking Permitted

Note: The following instruction authorizes the jury to take

notes. If the court decides to instruct the jury to not take

notes, an appropriate charge is set forth in the endnote to

this Note. 39

You may, but are not required to, take notes of (specify, e.g. the

testimony of the witnesses).40 If you wish to take notes, we will provide

materials to you for that purpose. If you decide to take notes, you must

follow these rules:

Remember, every word of each witness is recorded by the Court

Reporter and, during deliberations, upon your request, the testimony

will be read back to you in whole or in part. So there is no need to take

verbatim notes of a witness’s testimony. Notes, by definition, are a

“brief” written record of something to assist the memory. A note should

not take precedence over your own independent recollection.

Remember also, you are the finders of fact who are responsible

for evaluating the believability and accuracy of a witness's testimony;

it is thus important that you be able to both fully comprehend what a

witness is saying and how the witness is saying it. Accordingly, you

must not permit note-taking to distract you from the proceedings. If you

make a note, it should be brief and not distract you from what the next

question and answer is.

Any notes a juror takes are only for that juror’s own personal use

in refreshing his or her recollection. Thus, jurors who choose not to

take notes must rely on their own independent recollection, and must

not be influenced by any notes that another juror may take.

Also, a juror's notes are not a substitute for the recorded

19

transcript of the testimony or for any exhibit received in evidence. If

during your deliberations, there is a discrepancy between a juror's

recollection and his or her notes regarding the evidence, you should

ask to have the relevant testimony read back or the exhibit produced for

your inspection.

[Add if note-taking of the Court instructions is permitted:

In addition, a juror's notes are not a substitute for the detailed

explanation I will give you of the principles of law that govern this case.

If there is a discrepancy between a juror's recollection and his or her

notes regarding those principles, you should ask me to explain those

principles again, and I will be happy to do so.]

Each juror who intends to take notes shall print his or her (name

or other identifier) on (specify). At the end of each trial day until the

jury retires to deliberate, the notes will be collected from each juror who

takes notes. A juror may only refer to his or her notes during the

proceedings and during deliberations. Any notes taken are confidential

and shall not be available for examination or review by any party or

other person. After the jury has rendered its verdict, we will collect the

notes and destroy them.

20

Credibility of Witness

As judges of the facts, you alone determine the truthfulness and

accuracy of the testimony of each witness. You must decide whether

a witness told the truth and was accurate, or instead, testified falsely or

was mistaken. You must also decide what importance to give to the

testimony you accept as truthful and accurate. It is the quality of the

testimony that is controlling, not the number of witnesses who testify.41

Test of Credibility

There is no particular formula for evaluating the truthfulness and

accuracy of another person's statements or testimony. You bring to this

process all of your varied experiences. In life, you frequently decide the

truthfulness and accuracy of statements made to you by other people.

The same factors used to make those decisions, should be used in this

case when evaluating the testimony. At the end of the trial, I will give

you some examples of those factors.

21

Court Rulings

There are, as I am sure you appreciate, rules for all stages of a

trial, including rules that govern whether certain evidence may be

introduced and, if so, how and when. Part of my job is to enforce those

rules.

Some of these rules you may understand when you hear the

ruling, but some of them you may not understand unless you have

studied the law. The rules have been carefully developed over

hundreds of years for the sole purpose of guaranteeing a fair and

orderly trial.

In other words, the rules are not designed to determine whether

the evidence you hear and see is true or false, accurate or inaccurate.

It is for you, not me, to evaluate the evidence and make that decision.

The rules are designed to ensure that the evidence you hear and see

is relevant and in a form that permits you to evaluate it fairly.

[One of these rules, dealing with refreshing a witness's

recollection or memory, I have already explained to you.] I am now

going to explain some [other] rules that are commonly applied during

a trial so you will better understand the court's ruling when it is made,

and you will appreciate, as I just explained, that the rules are designed

only to assure a fair and orderly trial.

22

Permissible Testimony

A witness usually can testify only about matters the witness has

personal knowledge of, that is, something the witness has personally

seen, heard, felt, touched, or tasted. Thus, a witness is not permitted

to guess, or speculate or say what he or she thinks another person

saw, heard, felt, touched or tasted.

Also, a witness is not permitted to give an opinion about matters

for which a special expertise is necessary, unless, of course, the

witness purports to be an expert on the matter he or she is being

questioned about.

With some exceptions, what a witness may have been thinking

when something was taking place is not relevant evidence.

Finally, a witness is often not permitted to testify to “hearsay” --

meaning generally that a witness can not testify to what the witness

may have said before the trial, or what another person may have said

to that witness.42 But, there are many exceptions to the “hearsay” rule,

for a variety of sound reasons, too numerous to detail for you now. I

will, however, explain a couple of exceptions that frequently arise during

a trial.

23

Statement not admitted for its truth

Sometimes a witness will be permitted to testify that the witness

did something because of what someone said.

In that circumstance, it does not matter who uttered the

statement, or how the speaker gathered the information for the

statement, or even whether the statement is truthful and accurate. It

matters only that someone uttered words and the witness did

something on hearing those words.

So, in that instance, you may not consider what the witness was

told for the truth of the words said to the witness. You may consider the

words only for the reason they are offered, that is, to explain what the

witness did after hearing the statement.

24

Prior Statement of a Witness

In limited circumstances, our law permits a witness to be asked

whether that witness made a statement about the case before testifying

at the trial.

If such a question is permitted, the law requires that the

questioner inform the witness of the time, date, place and content of the

prior statement in order to permit the witness an opportunity to recall

whether he or she made that prior statement.43 I’m sure you find that

to be fair.

If the statement were allegedly made in a legal proceeding and

there is a transcript of that proceeding, the law requires that after

questions establishing the time, date, and place, the questioner ask the

witness whether he or she was asked the following question and gave

the following answer, and then the lawyer will read the purported

question and answer and the witness should say yes or no.

Unless you are told otherwise, you can accept that the lawyer

has correctly read the question and answer from the transcript.

Sometimes a person to whom the alleged prior statement was

made may be a witness at the trial and may be asked whether such

statement was in fact made to that person.

25

[Add if appropriate to the case:

If a witness is asked about a prior statement and you find that

prior statement to be inconsistent with the witness's testimony here at

the trial, then you may consider that prior inconsistent statement in

evaluating the believability and accuracy of the witness's testimony

here at the trial. The content, the words, of a prior inconsistent

statement may not be used as evidence of what happened on the day

in question or of who was involved. It may be used only to evaluate the

believability and accuracy of the witness's testimony here at the trial.]

26

Photographs

Often a lawyer will ask the court to receive in evidence items,

such as a photograph [or a map]. Under our law, to have a photograph

[or a map] admitted in evidence, it must be shown that the photograph

[or map] is a fair and accurate depiction of the area in question at the

time in question.44 If that is done, it does not matter on the question of

receiving the photograph [or map] in evidence, who took the

photograph [or made the map] or when it was done.

Sometimes with a photograph taken a long time after the time in

question, a witness will testify that some of the items depicted in the

photograph were not present at the scene at the time in question.

Unless those items would distort a fair representation of the area at the

time in question, the photograph may still be received in evidence with,

of course, the understanding that certain items in the photograph were

not at that scene at the time in question.

[Sometimes a map or sketch of the area in question will not be

drawn to scale. Again, that map or sketch may still be admitted if it is

a fair illustration of the area in question, with, of course, the

understanding that the objects or distances in the map or sketch are not

drawn to scale.]

27

[Add If Applicable:

In this case, photographs of the deceased may be admitted in

evidence to illustrate certain matters. You may, understandably, find

the photographs upsetting. If you do, remember you have promised to

be fair. If at the end of the case, after you have evaluated all the

evidence, you decide that the People have not proven the defendant

guilty of a charged crime, then you must find the defendant not guilty.

You must not hold the defendant responsible just because you find the

photographs upsetting and believe a serious crime took place and you

want someone to pay for that crime.]

28

Lawyers’ Questions, Objections, and Conferences

During the presentation of evidence, the lawyers for the parties

will, in turn, be asking questions of a witness. During that questioning,

a lawyer is not permitted to make comments on a witness's answer or

the case. That always happens in TV shows or movies because they

have only a short period of time to convey the story. But, in real trials,

it is not allowed. In a real trial, it is at the end of the case that the

lawyers are permitted to address the jurors in what is called a

summation, and it is then that the lawyers may comment on the

witnesses, the testimony, and other evidence.

During the questioning of a witness, if a lawyer believes a

question or some other presentation of evidence is not in accord with

a rule of law, that lawyer will object. When an objection is made, I will

decide whether the rules permit the question to be asked or the

evidence to be introduced.

Making objections is part of a lawyer's job. You are not to draw

any unfavorable inference because objections are made. They take

place at every trial.

A lawyer may object before a witness answers a question or after

a witness answers a question.

When an objection is made to a question before the witness

answers, if I overrule the objection, the witness will be permitted to

answer. If I sustain the objection, there is no answer and therefore no

evidence. Remember a question alone is not evidence.

If the lawyer objects after the witness has answered the question,

and I overrule the objection, the answer stands as evidence. If I sustain

the objection, the answer is not evidence, the question and answer are

29

stricken from the record and you are to completely disregard the

answer.

[Also, the court has an obligation under the laws of New York to

make sure that certain fundamental rules of law are followed even if

one of the lawyers does not voice an objection. So, on occasion, you

may hear me say sustained or words to that effect, even though one of

the lawyers has not objected.]

In any event, any ruling by the court on an objection of counsel

or otherwise is based on our law, and expresses no opinion about the

facts of the case or whether the defendant is guilty or not guilty.

Remember, you are responsible for that decision.

Now, from time to time during the course of the trial there will be

conferences at the bench with counsel, and, if they become prolonged,

it may be necessary [for the court and the parties to excuse themselves

for a short period] [or] [for the court to ask the jury to return to the jury

room]. These conferences deal with questions and matters of law or

scheduling of the trial that are my responsibility. So when the occasion

does arise when there are conferences at the bench or outside your

presence, I ask you to be patient and understanding while these

conferences are conducted.

30

Summations

Upon completion of the presentation of evidence, the lawyers will

address you in a closing statement or what the law calls a summation.

What a lawyer says in summation in not evidence.45 The summations,

however, provide each lawyer an opportunity to review the evidence

presented and submit for your consideration the facts, inferences, and

conclusions which they contend may be properly drawn from the

evidence presented.46

31

Charge & Deliberation

After summations are concluded, I will instruct you on the rules

of law applicable to the case. You must accept and follow those rules.

You will then begin your deliberations.

During your deliberations, your function as jurors will be to decide

what the facts are and to apply the rules of law that I set out. You will

determine what the facts are from all the testimony that you hear, the

exhibits that are submitted, and any stipulations the parties have

agreed to; or, in other words, you will decide the case on the evidence.

The conclusion you reach from determining the facts and applying the

law will be your verdict, guilty or not guilty [or not responsible by reason

of mental disease or defect].

Fairness Admonition1

Remember, you have promised to be a fair juror. A fair juror is a

person who will not permit his or her verdict to be influenced by a bias

or prejudice in favor of or against a person who appeared in this trial on

account of that person’s race, color, national origin, ancestry, gender,

gender identity or expression, religion, religious practice, age, disability

or sexual orientation, and further, a fair juror will guard against the

application of any stereotypes or attitudes a juror may harbor about

people or groups that would lead to a biased decision based upon

those stereotypes or attitudes.

1 Added June 2019.

32

Foreperson

Under our law, juror number one will serve as the foreperson.

During the trial, the foreperson has the same responsibilities as any

other juror. [During deliberations, the foreperson will sign any note that

the jury sends to me, including that the jury has reached a verdict.] The

foreperson will announce the jury’s verdict.

33

Summary of Trial Stages47

Thus in sum, the stages of a criminal trial are:

1. Openings.

2. The presentation of evidence.

3. Summations.

4. The final instructions of the court to the jury on the law;

and

5. The deliberation of the jury and the verdict.

34

Juror Problem, Trial Delay

During the trial, if you need to speak with me about

something relating to your jury service or the trial, please tell a

court officer that you need to speak to me. I will then arrange an

appropriate meeting with the parties in the courtroom. Do not

discuss with your fellow jurors whatever you feel necessary to

bring to my attention. And, after we have had our conversation,

do not discuss with your fellow jurors whatever it was we

discussed.

During a trial, we do our best to avoid delay. From

experience I know delays are inevitable for a multitude of

reasons, through no one's deliberate fault. When that delay

occurs, I ask for your understanding and patience.

35

Juror Attendance

I also request that you be here at the times I set so the

absence or lateness of a juror is not the occasion for delay. [I

would ask that you give a phone number to the court officer at

which we can reach you if we need to change the trial schedule.]

If an emergency arises that will make you late or prevent

you from attending, please call the court, leave a number where

you can be reached, and explain the problem so we can

minimize everyone's inconvenience. Before you leave, a court

officer will give you the telephone number of the court.

36

Alternate Jurors

An alternate juror is expected to pay the same close

attention to the case as any one of the [6][12] jurors. The only

difference between an alternate juror and one of the twelve jurors

is that the alternate juror does not know at this time whether that

juror will be called upon at some point during the trial to

substitute for one of the twelve jurors.

For everyone's information, that substitution can take place

only if some presently unforeseen, extraordinary emergency

arises that makes it totally impossible for one of the first [6][12]

jurors to complete the trial. Our law expects that the first [6][12]

jurors who begin the trial will be the [6][12 ] jurors at the end of

the trial. So, it takes an extraordinary emergency before there

may be a substitution of an alternate.

37

Required Jury Admonitions

(Revised May 5, 2009)2

(Note: Statutory law requires that certain

admonitions be given to the jury as part of the court's

preliminary instructions. See CPL 270.40. This

charge sets forth those admonitions and provides

appropriate explanations.)

Our law requires jurors to follow certain instructions in order

to help assure a just and fair trial. I will now give you those

instructions.

1. Do not converse, either among yourselves or with anyone

else, about anything related to the case. You may tell the people

with whom you live and your employer that you are a juror and

give them information about when you will be required to be in

court. But, you may not talk with them or anyone else about

anything related to the case.

2. Do not, at any time during the trial, request, accept, agree

to accept, or discuss with any person the receipt or acceptance

of any payment or benefit in return for supplying any information

concerning the trial.

3. You must promptly report directly to me any incident within

your knowledge involving an attempt by any person improperly to

influence you or any member of the jury.

4. Do not visit or view the premises or place where the

2 This charge was revised to include admonitions against utilizingelectronic means and devices to research or communicate with others aboutthe case.

38

charged crime was allegedly committed, or any other premises or

place involved in the case. And you must not use internet maps

or Google Earth or any other program or device to search for and

view any location discussed in the testimony.

5. Do not read, view or listen to any accounts or discussions

of the case reported by newspapers, television, radio, the internet,

or any other news media.

6. Do not attempt to research any fact, issue, or law related to

this case, whether by discussion with others, by research in a

library or on the internet, or by any other means or source.

In this age of instant electronic communication and

research, I want to emphasize that in addition to not conversing

face to face with anyone about the case, you must not

communicate with anyone about the case by any other means,

including by telephone, text messages, email, internet chat or

chat rooms, blogs, or social websites, such as Facebook,

MySpace or Twitter.

You must not provide any information about the case to

anyone by any means whatsoever, and that includes the posting

of information about the case, or what you are doing in the case,

on any device, or internet site, including blogs, chat rooms, social

websites or any other means.

You must also not Google or otherwise search for any

information about the case, or the law which applies to the case,

or the people involved in the case, including the defendant, the

witnesses, the lawyers, or the judge.

Now, ladies and gentlemen, I want you to understand why

39

these rules are so important:

Our law does not permit jurors to converse with anyone

else about the case, or to permit anyone to talk to them about the

case, because only jurors are authorized to render a verdict.

Only you have been found to be fair and only you have promised

to be fair – no one else has been so qualified.

Our law also does not permit jurors to converse among

themselves about the case until the Court tells them to begin

deliberations because premature discussions can lead to a

premature final decision.

Our law also does not permit you to visit a place discussed

in the testimony. First, you cannot always be sure that the place

is in the same condition as it was on the day in question. Second,

even if it were in the same condition, once you go to a place

discussed in the testimony to evaluate the evidence in light of

what you see, you become a witness, not a juror. As a witness,

you may now have an erroneous view of the scene that may not

be subject to correction by either party. That is not fair.

Finally, our law requires that you not read or listen to any

news accounts of the case, and that you not attempt to research

any fact, issue, or law related to the case. Your decision must be

based solely on the testimony and other evidence presented in

this courtroom. It would not be fair to the parties for you to base

your decision on some reporter’s view or opinion, or upon

information you acquire outside the courtroom.

These rules are designed to help guarantee a fair trial, and,

our law accordingly sets forth serious consequences if the rules

are not followed.

40

I trust you understand and appreciate the importance of

following these rules and, in accord with your oath and promise,

I know you will do so.

41

1. The 2019 revision was for the purpose of reminding the jury of their promiseto be fair. See page

2. CPL 300.10 (4)

3. CPL 260.30 (3)

4. CPL 260.30 (4)

5. See People v Barnes, 80 NY2d 867, 868 (1992); People v Davis, 58NY2d 1102, 1103-1104 (1983).

6. CPL 260.30 (5)

7. See People v Greaves, 94 NY2d 775 (1999).

8. CPL 310.20 (1)

9. See People v Boyd, 58 NY2d 1016, 1018 (1983); Huff v Bennett, 6 NY337 (1852); Richardson, Evidence § 6-214 at 362 (11th ed.).

10. See People v Townsley, __NY3d __, 2012 NY Slip Op 08056 (2012)(“The [prosecutor’s] argument suggested to the jury that there wassomething improper in a lawyer's interviewing a witness in the hope of gettingfavorable testimony. That is not in the least improper. It is what good lawyersdo”).

11. See People v Liverpool, 262 AD2d 425, lv denied 93 NY2d 1022 (2nd

Dept 1999); People v Fountain, 170 AD2d 414, 415, lv denied 78 NY2d 966(2nd Dept 1991).

12. See Gedders v United States, 425 US 80, 87 (1976).

13. CPL 260.30 (6)

14. Taylor v Kentucky, 436 US 478 (1978).

15. In re Winship, 397 US 358 (1970); Taylor v Kentucky, supra; Peoplev Antommarchi, 80 NY2d 247, 252-53 (1992).

16. CPL 300.10 (2)

17. Id.

18. Id.

42

19. In re Winship, supra ; People v Antommarchi, supra.

20. See People v Whalen, 59 NY2d 273, 279 (1983); People vBeslanovics, 57 NY2d 726 (1982); People v Newman, 46 NY2d 126 (1978).

21. Cf. People v Patterson, 39 NY2d 288, 296, affd 432 US 197 (1977)(stating that, “[i]f the burden of proof was improperly placed upon thedefendant, defendant was deprived of a properly conducted trial...").

22. See Taylor v Kentucky, supra; In re Winship, supra; People vAntommarchi, supra.

23. See generally, Victor v Nebraska, 511 US 1 (1994); People v Antommarchi, supra; Solan, Refocusing the Burden of Proof in CriminalCases: Some Doubt about Reasonable Doubt, 78 Tex. L. Rev. 105 (1999); L. Sand, et. al., Modern Federal Jury Instructions, Instruction 4-2, 4-8 to 4-21(1999); Federal Judicial Center, Pattern Criminal Jury Instructions (1988)(recommending the following charge: "As I have said many times, thegovernment has the burden of proving the defendant guilty beyond areasonable doubt. Some of you may have served as jurors in civil cases,where you were told that it is only necessary to prove that a fact is morelikely true than not true. In criminal cases, the government's proof must bemore powerful than that. It must be beyond a reasonable doubt. Proofbeyond a reasonable doubt is proof that leaves you firmly convinced of thedefendant's guilt. There are very few things in this world that we know withabsolute certainty, and in criminal cases the law does not require proof thatovercomes every possible doubt. If, based on your consideration of theevidence, you are firmly convinced that the defendant is guilty of the crimecharged, you must find him guilty. If on the other hand, you think there is areal possibility that he is not guilty, you must give him the benefit of the doubtand find him not guilty"). Justice Ginsberg, in her concurrence in Victor vNebraska, supra, at 26, stated that "[t]he Federal Judicial Center hasproposed a definition of reasonable doubt that is clear, straightforward, andaccurate."

24. See Victor v Nebraska, supra; In re Winship, supra.

25. See Victor v Nebraska, supra at 13 and 17-20 (approving a jurycharge that conveyed the concept that "absolute certainty is unattainable inmatters relating to human affairs" when the charge said " <everything relatingto human affairs, and depending on moral evidence, is open to somepossible or imaginary doubt'..." ; and approving that portion of the charge thatstated that "a reasonable doubt is <not a mere possible doubt."); People vMalloy, 55 NY2d 296, 300, 303 (1982) (approving a charge that includedlanguage stating that a reasonable doubt is not "proof beyond ... all doubt or

43

proof to a mathematical certainty, or scientific certainty"); L. Sand, supra, at4-11 to 4-13 (reporting that approved charges in some federal circuits includethat proof beyond a reasonable doubt does not mean proof "beyond allpossible doubt"); Federal Judicial Center, Pattern Criminal Jury Instructions,supra at 17-18 (stating that "... in criminal cases the law does not requireproof that overcomes every possible doubt").

26. See Federal Judicial Center, Pattern Criminal Jury Instructions, supraat 17-18.

27. See Solan, supra (stating “...we use the expression ‘proof beyond areasonable doubt' because we believe that the government should berequired to prove its case so strongly that the evidence leaves the jury withthe highest degree of certitude based on such evidence.”); Victor v Nebraska, supra at 22 (approving a jury instruction that informed the jury thatthe probabilities must be "strong" enough to prove the defendant's guiltbeyond a reasonable doubt).

28. In re Winship, supra.

29. See People v Antommarchi, supra; People v Barker, 153 NY 111(1897); People v Guidici, 100 NY 503 (1885); State v Medina, 147 NJ 43,69, 685 A2d 1242, 1251 (1996).

30. See Victor v Nebraska, 511 US 1, 17 (1994) (accepting a charge thatstated that a reasonable doubt is an “actual and substantial doubt...asdistinguished from a doubt arising from mere possibility, from bareimagination, or from fanciful conjecture” and separately holding that "Afanciful doubt is not a reasonable doubt."); People v Guidici, supra; andPeople v Jones, 27 NY2d 222 (1970) (approving a charge that distinguisheda reasonable doubt from a "vague and imaginary" doubt).

31. See People v Cubino 88 NY2d 998, 1000 (1996); People v Radcliffe,232 NY 249 (1921). Cubino approved the following language: "The doubt,to be a reasonable doubt, should be one which a reasonable person, actingin a matter of this importance, would be likely to entertain because of theevidence or the lack or insufficiency of the evidence in the case.” (Cubino,88 NY2d at 1000). The failure, however, to include in that charge that areasonable doubt may be founded on a “lack of evidence” is not error(Radcliffe, 232 NY at 254). Accord, People v Reinoso, 257 AD2d 484 (1st

Dept 1999), lv denied 93 NY2d 901; Foran v Metz, 463 FSupp 1088, 1091(S.D.N.Y), affd 603 F2d 212 (2d Cir), cert denied 444 U.S. 830 (1979). SeePeople v. Nazario, 147 Misc.2d 934 (Supreme Court, Bronx Co., 1990).Compare People v. Ostin, 62 A.D.2d 1004 (2nd Dept.1978). In its decision,explaining why the failure to include the “lack of evidence” language was not

44

error, Radcliffe explained, "The jurors were instructed that it was their dutyto judge the facts and to weigh the evidence and that if they had the slightestdoubt of the guilt of the defendants, so long as it was a reasonable doubt,founded on the evidence, it was their duty to acquit. We may assume thatthey possessed sufficient intelligence to understand that the court intendedto tell them that they were to consider not only the evidence that was givenin the case but also whether there was an absence of material andconvincing evidence (Radcliffe, 232 NY at 254). This portion of the chargehas combined Cubino's formulation with a modification from Radcliffe's“convincing evidence” language. (Footnote, revised November 1, 2002).

32. Federal Judicial Center, Pattern Criminal Jury Instructions, supra at17-18; L. Sand, Modern Federal Jury Instructions, supra, at 4-12 to 4-13 to4-15 (the terminology "firmly convinced" is used in the Ninth Circuit PatternInstruction, and the Fifth Circuit and District of Columbia Circuit haveapproved the Federal Judicial Center charge, that contains suchterminology.). States adopting such terminology include New Jersey, Arizonaand Indiana. See State v Medina, 147 NJ 43, 61 (1996); State v Portillo,182 Ariz 592 (1995); Winegeart v State, 665 NE2d 893 (Ind 1996). Seealso State v Van Gundy, 64 Ohio St 3d 230, 232 (1992) (State statutorydefinition includes: "’Reasonable doubt' is present when the jurors, after theyhave carefully considered and compared all the evidence, cannot say theyare firmly convinced of the truth of the charge"). Solan, supra ("While<firmly convinced' is not really a definition of <beyond a reasonable doubt,' itbest reflects the idea that defendants should not be convicted unless thegovernment has proven guilt to near certitude"). See also Jackson v Virginia,443 US 307, 315 (1979) (“...by impressing upon the factfinder the need toreach a subjective state of near certitude of the guilt of the accused, thestandard [of proof beyond a reasonable doubt] symbolizes the significancethat our society attaches to the criminal sanction and thus to liberty itself”);Victor v Nebraska, supra at 12.

33. See Solan, supra ("Other possible instructions, such as <proof soconvincing that it leaves no reasonable doubt of the defendant's guilt,' mayalso accomplish the same goals [of focusing a jury on what they shouldconsider]"). L. Sand, supra at 4-12 (reporting that the pattern instructionsof the Fifth and Eleventh Circuit include the following language: "It is onlyrequired that the government's proof exclude any ‘reasonable doubt’concerning the defendant's guilt").

34. See Victor v Nebraska, supra; People v Barker, supra (approving acharge which stated, "A reasonable doubt, gentlemen, is not a mere whim,guess or surmise; nor is it a mere subterfuge to which resort may be had inorder to avoid doing a disagreeable thing; but it is such a doubt asreasonable men may entertain, after a careful and honest review and

45

consideration of the evidence in the case").

35. Id.

36. People v Goetz, supra.

37. See People v Melendez, 55 NY2d 445, 452 (1982); People vLaracuente, 21 AD3d 1389, 1391 (4th Dept 2005), lv denied 6 NY3d 777.

38. The trial court has the discretion to permit jurors to submit writtenquestions of a witness subject to appropriate instructions and monitoring bythe court (see People v Knapper, 230 App Div 487 [1st Dept 1930]; Peoplev Riley, 92 AD2d 576 [2d Dept 1983]; People v Wilds, 141 AD2d 395 [1st

Dept 1988]; People v Bacic, 202 AD2d 234 [1st Dept 1994]). One judge hasdeclared that he did not and would not ever exercise his discretion to permitjurors to ask questions of a witness (See People v Aulder, 192 Misc2d 404[Sup Ct 2002]).

39. This charge draws from the Uniform Rules for Juror Deliberation (see22 NYCRR § 220.10 as amended effective July 20, 2001), and from Peoplev Hues, 92 NY2d 413 (1998). The revision was to conform the charge to theamended rules. The Uniform Rules, inter alia, provide:

After the jury has been sworn and before anyopening statements or addresses, the court shalldetermine if the jurors may take notes at anystage of the proceedings. In making thisdetermination, the court shall consider theprobable length of the trial and the nature andcomplexity of the evidence likely to be admitted.22 NYCRR § 220.10 (b)

Whether to authorize note-taking, and when during the proceedingsto authorize it, is in the discretion of the court (see People v Hues, supra;People v DiLuca, 85 AD2d 439 [2d Dept 1982]).

However, the trend, encouraged by the court rules and the Court ofAppeals, is to permit note-taking (see 22 NYCRR § 220.10(b); People vHues, supra).

If note-taking is permitted, this instruction should be given to the juryat the beginning of the trial and, according to the court rule, the “instructionsshall be repeated at the conclusion of the case as part of the court's chargeprior to the commencement of jury deliberations.”

46

If, in the court’s discretion, note-taking is not permitted, the followingcharge may be given:

You may not take notes during the trial. There are reasonsfor that rule.

(1) It is often difficult to take notes and, at the same time,to look at the witness and fully comprehend and appreciate whatthe witness is saying and how the witness is saying it. Since youare the finders of fact who are responsible for evaluating thebelievability and accuracy of a witness's testimony, it isimportant that you be able to both fully comprehend what awitness is saying and how the witness is saying it, without thedistraction of taking notes.

(2) There is no real need for notes, since every word ofeach witness is recorded by the Court Reporter and, duringdeliberations, upon your request, the testimony can be read backto you.

The lawyers or the court may take notes. The difference is this. The lawyers and the court are not the finders of the facts. Theyare not responsible for evaluating the witnesses in order to cometo a verdict of guilty or not guilty. The lawyers and the court have other functions for which some note-taking may be helpful. You are not to attach any importance to the lawyers or the courttaking or not taking notes. You must decide this case on theevidence and the law.

40. If the court, in its discretion decides to limit note-taking to a particularstage of the trial, or to permit note-taking generally except for a particularstage or stages of the trial, the court can modify the first sentence to stateeither:

You may, but are not required to, take notes during (specify theportion(s) of the proceedings during which note-taking is permitted).

or

You may, but are not required to, take notes during the proceedings,except you cannot take notes during (specify the portion(s) of theproceedings during which note-taking is prohibited).

47

41. See generally People v Ward, 282 AD2d 819 (3d Dept 2001), lv denied96 NY2d 942; People v Love, 244 AD2d 431 (2d Dept 1997), lv denied 91NY2d 876; People v Turton, 221 AD2d 671, 671-672 (2d Dept 1995), lvdenied 88 NY2d 887; People v Jansen, 130 AD2d 764 (2d Dept. 1987), lvdenied 70 NY2d 713.

42. See generally Tyrrell v Wal-Mart Stores Inc., 97 NY2d 650, 652(2001).

43. See People v Duncan, 46 NY2d 74, 80 (1978); People v Concepcion,175 AD2d 324, 327 (3rd Dept 1991), lv denied 78 NY2d 1010.

44. See Moore v Leaseway Transp. Corp., 49 NY2d 720, 722 (1980).

45. See People v Roche, 98 NY2d 70, 78 (2002).

46. See People v Galloway, 54 NY2d 396, 399 (1981).

47. See CPL 260.30

48